Research and commentary on state efforts to restrict the movement of people across borders, and on the alternatives.

Thursday, June 29, 2017

Eleventh Circuit Appellate Panel Hears Oral Argument on IJ Who Tossed Professor out of Building

Attorney Bruce Brown

On Tuesday, June 27 I had the honor of observing my attorney Bruce Brown present an oral argument on Stevens v. the Attorney General before a panel of three Eleventh Circuit judges in the Atlanta Appellate Court building on Forsyth St., a million miles from the arc of the moral universe that bottoms out at 180 Spring St., SW, the home of Atlanta's immigration courts, though just a few seconds distant as the crow flies.

You can stream or download the 39 minute hearing. Attorney Ray Lerer, who has been with me in this since 2012, was in the second chair. I am incredibly grateful to both of them.

The backstory is that over seven years ago a cranky and duplicitous INS prosecutor hired by the Executive Office of Immigration Review (EOIR) to wear a black robe and rubber stamp removal orders, closed a hearing improperly and then 20 minutes after I had left the courtroom ordered guards to remove me from the building. I filed a misconduct complaint. William Cassidy, the attorney-in-the-robe, then colluded with his friend and the guy supervising the investigation, Gary Smith, and claimed that Cassidy never ordered me removed from the building. This cover-up was in the official letter closing my complaint in June, 2010, a few months after I was thrown out.

Next I filed a request under the Freedom of Information Act and obtained a contemporaneous transcript of the Paragon Security Guard Nathaniel Hayes telling the Battle Creek MegaCenter Operator that he threw me out because "the judge" told him to and that he had no idea what was going on until after he returned and learned EOIR was trying to ban me from immigration hearings.

Then I filed a pro se Complaint and a few months later the law firm of Keegan Federal (the Federal Firm) stepped in.

Through discovery we learned that EOIR's general counsel contacted the agency that handles federal building security to keep me out. DHS informed EOIR that they couldn't just ban someone but first would need a policy. EOIR couldn't openly say "people critical of IJs and EOIR cannot enter immigration courts" and dropped the matter.

The investigation found that during a hearing where Judge William Cassidy rejected a request for bond, he compared an immigrant to “a person coming to your home in a Halloween mask, waving a knife dripping with blood.” In a private conversation after a case, Cassidy told an observer for the project that the United States should be more like Russia, noting that “if you come to America, you must speak English.” Cassidy also said his cases involve people “trying to scam the system” and that none of them want to be citizens.

The Emory Law School/SPLC letter to EOIR Director Juan Osuna states:

IJ Cassidy described why he sometimes did not permit observers in his court, although Immigration Court proceedings are open to the public. IJ Cassidy expressed dismay about “reporters who write all sorts of things about me.”

He continued: “I just follow the law. When you have an uninvited guest in your home, what do you do? You have to tell them to leave.” IJ Cassidy then provided explanations for comments made during the proceedings. He promised the observer, “let me know if you want to clerk for us. Petition for it and I will put in a good word for you.”

One observer noted in a later proceeding that IJ Cassidy glanced at him when he spoke harshly to a witness before apologizing and stating, “I did not intend to be abrupt.” In their conversation after the hearing, the observer reported that IJ Cassidy asked whether the observer thought he was “mean or harsh” in his ruling. He sought to explain to another observer why he ruled the way he did and then asked how the observers would use the information they have gathered.

The panel on Tuesday -- a Reagan appointee, an Obama appointee who was a former public defender, and an Obama appointee who was a former prosecutor -- appeared to have decided in advance that the case would hang on whether or not immigration judges have absolute judicial immunity based on case law conferring an "inherent judicial function" to a penumbra of actions for real judges or Administrative Law Judges employed under the Administrative Procedures Act.

A sad coda to all this is that MaryBeth Keller, who was the person who coordinated the investigation of my complaint by first convening a meeting with the people trying to ban me to "avoid a right hand/left hand" situation, to quote from her email in 2010, and who squashed numerous misconduct investigations under her supervision by officially categorizing complaints as "frivolous" despite her own notes indicating they were not--including allegations of bribery at the Dallas immigration court-- and should have been fired for this many times, was promoted by the Obama administration to Chief Immigration Judge.

Atlanta's "Immigration Courts": Where Judge Judy might end up after she retires from her reality TV show

Here's the wonky history informing our argument that Immigration "Judge" William Cassidy has more in common with Judge Judy than he does with any of the judges in the Forsyth building.

As you'll see, both the phrases "immigration judge" and "immigration court" are created by agency via housekeeping rules with no review and no claim to map onto any underlying functions that are either those of courts (which must maintain independent records), nor recognizably judicial.

1. In 1950, the Supreme Court in Wong Sang v. McGrath, Attorney General, ruled that a deportation order was unconstitutional because the "special inquiry officer" ordering the removal was not employed nor the hearings conducted under the Administrative Procedures Act:

But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process. We find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner.")

2. A couple months later, in a Senate Appropriations Hearing, the Supreme Court mandate is discussed. Only economic considerations are taken into account and the Appropriations Act includes a proviso that explicitly mandates immigration hearings be conducted outside the provisions of the Administrative Procedures Act.

from 1950 Appropriations Hearing

EFFECT OF SUPREME COURT DECISION
INVALIDATING DEPORTATION PROCEDURES

Senator McCARRAN. The committee has
just one other question here. In regard to the 1951 appropriation,
what will be the effect of the Supreme Court decision in the case of Sung v. U. S., wherein they invalidated the system previously used
by the Immigration Service, in having the same inspector act as
both the investigative officer and the hearing officer at deportation
proceedings? What have you to say to that?

Mr. MILLER. We have an estimate before
the Bureau of the Budget at the present moment, which involves
something like $25,000,000 of this sum of about $20,000,000 is for the
cost of conducting hearings on the southern frontier and $5,000,000 for
other types of cases. One very perplexing phase of that is the
necessity, upon application, to get such hearings under the APA Act.

The Mexicans they apprehend are
returned to Mexico. There were over 232,000 Mexicans apprehended in
the first 6 months of this fiscal year. They were not all different
persons because there are some repeats, of course. That means a half
million a year. Right now they are demanding and
receiving hearings under 19 (c) suspension of deportation on the ground
of economic detriment to American-born children or American
spouses, for example. That discretionary relief was, of course,
granted and approved by Congress.

It might in one single instance fix the
status in this country of maybe a husband and wife and maybe 12
children, with just 1 of them having been born in this country, usually very
shortly after arrival. If we have to give hearings under the
Administrative ProcedureAct, and a number of attorneys along
the border, I think quite properly, legitimately, are applying for
recognition to practice before our service, I think it is going to be a
terrific problem. It might possibly cost $150,000,000.

Probably in 10 years we could give
hearings to a half million applicants, we will say. But we will
possibly have a million next year and following years. That problem is increasing from a trickle of 10,000 in the last 10 years to this
figure that I have just given you.

Mr. Chairman, may I ask a
question about another matter?

Senator MCCARRAN. Yes.

That's the entire Congressional response to the Supreme Court in Sung.

"Justice?
Expensive.
Next item!"

Here's the language in the Supplemental Appropriations Act passed shortly after the above exchange, in which Congress uses ye olde Plenary Authority:

GENERAL PROVISIONS-DEPARTMENT OF JUSTICE

Proceedings under law relating to the exclusion or expulsion of aliens shall hereafter be without regard to the provisions of sections 5, 7,and 8 of the Administrative Procedure Act (5 . S. C. 1004, 1006, 1007).

One sentence. Not much longer than "screw you" and not much different. No due process rights for aliens, or U.S. citizens profiled as such.

3. As far as open hearings: the hearings before Special Inquiry Officers were not explicitly required to be open to the public until 1965, when the Department of Justice approved a rule change revising 8 CFR 2.16 in language that largely tracks that of the current 8 CFR 1003.27.

4. 1973: Here Come the "Judge" - Another federal rule change allowed for "immigration judge" to be used interchangeably with "special inquiry officer," but without one single substantive change in functions, as emphasized by the fact that a formal, public rule change procedure was not followed.

CHAPTER I-IMMIGRATION AND NATURALIZATION SERVICE,

DEPARTMENT OF JUSTICE

PART I-DEFINITIONS

Immigration Judge

Pursuant to 5 U.S.C. 552 and the authority contained in 8 U.S.C. 1103 and 8 CFR 2.1, part 1 of chapter I of title 8 of the Code of Federal Regulations, as hereinafter set forth, Is amended to provide that the terms "immigration judge" and "special inquiry officer" may be used interchangeably.

Section 1.1 is amended by adding at the end thereof a new paragraph (1) to read as follows: § 1.1 Definitions

(1) The term "immigration judge" means special inquiry officer and may be used interchangeably with the term special inquiry officer wherever it appears in this chapter.

Compliance with the. provisions of 5 U.S.C. 553 (80 Stat. 383) as to notice of proposed rulemaking and delayed effective date is unnecessary in, this instance and would serve no useful purpose because the amendment to § 1.1 relates to a rule of agency organization.

5. 1983 Executive Office of Immigration Review is created. Again, no formal rule-making process occurs. It should be noted that through this time period, there are no "immigration courts," only "reviews" and "proceedings."

6. 1987 EOIR makes substantive changes to regulations, including removing the language added in 1965 to require the special inquiry officers to follow the Federal Rules of Civil Procedure whenever possible.

This final rule amends 8 CFR 3, 103, 204, 208, 212, 236, 240, 242, 245, and 292 by replacing the tribunal name "Office of the Immigration Judge" with the tribunal name "Immigration Court." This rule codifies current usage of the term "Immigration Court" in reference to deportation and exclusion proceedings conducted before Immigration Judges throughout the United States. The rule makes no substantive changes in Immigration Judge proceedings.

EFFECTIVE DATE: This final rule is effective on June 30, 1995 except that the amendment to Sec. 242.1(a) as revised at 59 FR 42414, August 17, 1994, is effective August 17, 1995.

SUPPLEMENTARY INFORMATION: The final rule is a nomenclature change. The rule changes the name of the administrative tribunal which initially hears deportation and exclusion proceedings from "Office of the Immigration Judge" to "Immigration Court."

So first the agency invents the "immigration judge" and then, inspired by its own fiction, decides if there is a judge, there must be a court!

In the interests of truth in advertising, at the beginning of each hearing the IJs should be forced to make the following announcement: "Just to be clear, this [motions to the dais and seal] is only a 'court' in nomenclature. And the title? Some DOJ colleagues made it up a few decades ago without telling anyone first. The robe? Do you have any idea how much laundry I avoid with this? And that nonsense about 'the whole truth and nothing but the truth?' Hah! The truth is that there are no independent records created, as would be required for a real court. I get to create the record all by myself when I push this record button on and off, as the regulation authorizes."

The Weeds
The District Court dismissed my case because EOIR does not make these statements but ignores the statutes and regulations and pretends these are real courts and judges. District Court Judge Orinda Evans was tricked by this and granted Cassidy absolute judicial immunity, claiming that since real judges can order guards around based on "inherent judicial functions," so, too, can Cassidy.

The ruling fails to grapple with basic tenets of statutory construction: Congress has spoken very clearly and specifically on the authority available immigration judges. Unlike Article I courts, i.e., courts of record Congress created and to whom they gave contempt authority and authority over the U.S. marshals, and unlike Article III judges, Congress has deliberately restricted IJ contempt authority to civil fines, which the Attorney General has not implemented. Congress also has limited the independence of IJs, whose decisions may be fashioned at the behest of the Attorney General, to whom they report and who controls their salaries. (During the hearing Judge Williams pointed out that Cassidy ordering the guards to push me out after talking with headquarters would not occur under the APA.)

As to the question of what IJs should do if there are disturbances: there are thousands of federal employees across the country who make decisions in tense situations and disappoint petitioners, taxpayers, and other citizens every day: they and anyone else feeling unsafe in a federal building may alert a guard. Either the guard encounters the disturbance in real time and makes an arrest or intervention based on reasonable suspicion of a crime, or an arrest report or request for a restraining order is created. You don't need to give everyone who works in a federal building absolute judicial immunity in order to maintain order. Judge Williams came pretty close to stating a version of this in her questioning of the government's attorney, Chris Hollis. And of course all immigration proceedings throughout the country are in spaces accessible only after passing through a metal detector.

We are not challenging the Constitutionality of IJs to close hearings (though I would like to), but rather making the claim that since the regulation makes the hearings presumptively public, the IJ can't close them because a critic is present. 8 CFR 1003.27 is a federal regulation titled "Public Access to Hearings." The first phrase states, "All hearings, other than exclusion hearings, shall be open to the public." It also gives the immigration judge discretion to close them.

This regulation is similar to any other administrative or legislative body that opens its proceedings to public scrutiny as a matter of course. The First Amendment claim is not whether the discretion afforded EOIR in regulating access is too broad, but whether in implementing this discretion, EOIR employees, including immigration judges, court staff, and agency supervisors, can exclude people because of viewpoint. The First Amendment case law on this is clear that they may not. (Our record is overflowing with examples of my being tracked and singled out because, as Fran Mooney, in charge of Public Affairs and Building Security put it in the depositions, "she is very critical" of the agency. (You can find my six articles published in The Nation between 2008-10 here.)

Under our Constitution, proceedings that are generally open to the public may on occasion be closed without turning this discretion into an excuse for subverting public access for unconstitutional reasons. For instance, as we have recently seen, Congress's Judiciary Committee largely meets in public, but on occasion it has closed sessions. Congressional office halls and lobbies are generally open to the public, but some portions are not. And libraries are generally open to the public, but on a schedule determined by library staff, funds permitting.

None of these discretionary restrictions are inconsistent with a government policy requiring access, unless the discretion is based on viewpoint. If the library posts its hours are 9-5 and a librarian, on seeing someone whose religious views he deplores approach and locks the doors, this is no more legal than what EOIR, including Cassidy, did in hiding hearings from me and ordering me pushed out of the building.

Finally, every morning dozens of U.S. citizens show up at immigration courts around the country, don their black robes, and despite and not because of these laws and regulations, adhere to norms of due process and deliver justice as best they can. Their integrity and fairness redeem our institutions and their character, but do not change the underlying deformities of their supervisors and the agency that cuts their check.

About Me

Professor,
Political Science Department, Northwestern University.
I teach political theory and write about law-breaking by ICE and the immigration courts for The Nation magazine.
My book States without Nations: Citizenship for Mortals was published by Columbia University Press in 2009. It explores alternatives to our current laws that base citizenship on parochial, unjust ideas about birth, and shows how these laws are connected to other archaic practices inconsistent with liberalism, including inheritance and marriage.
My first book was Reproducing the State (Princeton, 1999).
For contact and other information, please go to jacquelinestevens.org.